Terms of sale

Last updated: November 2011

1. GENERAL

These terms and conditions form part of the contract ("agreement") between Kmart Australia Ltd (ABN 73 004 700 485) trading as Kmart Tyre & Auto Service (in this agreement, "we" or "us") and the customer (in this agreement, "you") that is formed when you sign a form issued by us that describes services that we will perform ("Service Authorisation") or when we agree to sell products to you.

You acknowledge that these terms and conditions and the Service Authorisation embody the whole agreement between you and us to the exclusion of all other terms and conditions. By offering to buy products and/or services from us and by signing a services authorisation you agree to be bound by this agreement.

A reference to "products" in this agreement includes all parts or products fitted as part of services we provide to you, unless the context requires otherwise.

2. PAYMENT

You agree to pay us in full for all services rendered and products supplied before removing your vehicle and/or the products (as applicable) from our premises, unless otherwise agreed. You further agree that payment of all amounts for work as set out in the "Service Authorisation" and (in the absence of manifest error) all amounts set out in an invoice for services rendered become due immediately upon completion of the relevant work and must be paid by close of business on the day of completion of the work unless we have agreed otherwise.

You acknowledge that any breach of the above term may constitute theft, and that we may in any case exercise all of our legal rights, including (but without limitation) the right to cancel or refuse credit and to take legal action for the immediate recovery of all sums outstanding. In such circumstances, and in any circumstances where we have agreed to payment terms with you and payment is outstanding, you agree to pay to us interest on all amounts outstanding from the due date of payment at a rate equal to our then current bank overdraft rate as varied from time to time. You also agree to pay all of our costs of enforcing this agreement and our other legal rights, including all legal costs (on a solicitor/own client basis) and mercantile agents' fees incurred by us in recovering amounts outstanding.

Regardless of any payment terms that we may negotiate with you, all money owed by you to us shall become due immediately in the event that you become bankrupt or insolvent, or proceedings are instituted to render you bankrupt or insolvent, as those terms are respectively defined under the Bankruptcy Act 1966 (Cth) and the Corporations Act 2001 (Cth).

All of our prices are subject to change without notice: a quotation or price will become binding on us only when this agreement is formed as described in clause 1. All quotations and prices include GST unless stated otherwise.

3. WARRANTIES AND CLAIMS

This clause is subject to any law that cannot be excluded or modified by this agreement.

Warranties

All products supplied by us are of merchantable quality and fit for their ordinary purpose. All services we provide will be conducted with all due care and skill. Nothing in this agreement affects your statutory rights.

Warranty claims

If any services provided by us are defective, we will rectify the defect(s) or provide a refund or credit to you equal to the reasonable cost of rectifying the relevant defect(s). If any product sold by us exhibits a fault in material or manufacture, then we will, subject to the conditions set out below, provide a refund to you, replace the product or give you a credit towards the purchase of a new product, any such credit being equal to the price paid for the faulty product. Any product so replaced will become our property immediately once it is replaced. Our liability is strictly limited to the cost of repair or replacement in each case, unless the law requires otherwise.

We will not accept any claim under the above paragraph or in pursuance of your statutory rights ("warranty claim") where the relevant fault or damage has been caused by circumstances occurring after the product or vehicle has left our premises, including fair wear and tear, further repairs not specifically authorised by us, improper use of a product or vehicle or any other act or omission affecting your vehicle or a product after risk has passed to you under this agreement.

Returns other than warranty claims

Subject to the other provisions of this clause 3, you may return a product for a refund or exchange within 14 days of purchase of the product. After this time, we will only accept products returned under valid warranty claims.

Discontinued products, products not in merchantable condition and automotive parts, tyres or other products fitted to vehicles will not be accepted for return once the relevant product or vehicle has left our premises, except under a warranty claim. Any product sold to you "off the shelf" and returned by you under this clause must be returned in its original condition with all of its original packaging, manuals and documentation. We will not be liable for your freight or other costs in returning products unless we advise you otherwise in writing or you are entitled to such costs at law.

Conditions of warranty claims and returns

We will not consider any claim or return under this clause unless:

a. you can produce a receipt or other documentary evidence showing that you have paid for the product(s) and/or services; and

b. all product names, identification marks and serial numbers incorporated into or onto the products by the manufacturer are still in or on each product that is the subject of the claim.

In most circumstances, a manufacturer's warranty will apply in addition to any warranties we provide under this agreement: in such cases, liability and warranty claim procedures may differ. Information about individual manufacturers' guarantees can be obtained on enquiry at any of our stores.

Claims-handling policy

It is our intention to achieve a satisfactory resolution with our customers in relation to all claims and disputes.

4. LIEN AND ABANDONMENT

Acknowledgement

Further to clause 2, you hereby acknowledge that we have an equitable lien over all products in our possession belonging to you, including your vehicle and all goods in or attached to your vehicle (“Lien”), to secure payment of any or all amounts outstanding from time to time

Exercise of lien

You agree that we may, at our discretion, exercise the lien in respect of any due and unpaid amounts outstanding by you and may retain your vehicle and/or any goods in your vehicle and serve notice on you requiring immediate payment of the amounts outstanding by you.

Power of sale

If the amounts outstanding by you have not been paid within 90 days of us providing notice to the you after we make reasonable attempts to contact you, we may sell your vehicle and/or all goods in or attached to your vehicle and apply the proceeds in the first instance to the satisfaction of the amounts outstanding by you and the costs of exercising the right of sale.

Proceeds of sale

Any balance of the proceeds of the sale will be returned, where possible, to you.

5. TITLE

Property in any product sold by us to you (including as part of services rendered) does not pass from us to you until you have paid for the services or product (as applicable) in full. Where we have indicated that we will accept payment by cheque or other negotiable instrument, title will pass to you upon all relevant funds being cleared. Products supplied by us will be at your sole risk immediately upon delivery to you or into a third party's custody on your behalf (whichever occurs sooner).

6. LIABILITY

We will not be liable to you or any third party in respect of any claim for injury, death, loss or damage to any person or property caused or arising out of the use of products sold by us, or out of any services performed by us, except to the extent that liability is imposed upon us or implied into a transaction by this agreement or by any statutory provisions that cannot be excluded by this agreement.

We have no authority to accept any goods for safe custody from you and will not be liable in any case for loss of, or damage to, any articles alleged to have been left with us by you or alleged to have been left in your vehicle, however such loss or damage was caused.

7. AUTHORITY IN RESPECT OF THE VEHICLE

You authorise us to do every act, matter and thing that we consider desirable or necessary for us to provide you with the products and/or services in respect of your vehicle, including:

(a) entering the vehicle; and

(b) test-driving your vehicle (including driving your vehicle to another location outside of the premises).

8. PRIVACY

We will comply with all applicable privacy legislation, including the Privacy Act 1988 (Cwlth).

Unless indicated otherwise under this agreement, you hereby consent to us using your personal information for the following purposes:

a. our internal marketing activities, including database compilation, analysis of demographics and the processing or creation of other marketing information;

b. customer surveys and individual follow-up calls, letters or emails enquiring as to your satisfaction with our products and services;

c. reminders that your vehicle may be due for a service; and

d. advising you of offers that we feel may be of interest to you.

If, at any time, you wish to withdraw your consent to any one or more of the above purposes or have any other privacy concerns, please contact our Customer Service Centre on 1800 634 251.

9. JURISDICTION

The proper law of all contracts arising between you and us is the law of the State of Victoria and the parties agree to submit to the exclusive jurisdiction of the courts of that State.

Questions?

If you have a question about our terms of sale, then contact us